tv William Mary - Constitutions the Rule of Law CSPAN August 18, 2019 3:39pm-4:39pm EDT
national captioning institute, which is responsible for its says but now of room on the future of representative democracy. the national constitution president jeffrey rosen and the university virginia law this event hosted by the college of women and -- the quality of william and mary. this is about an hour. ♪ we are here to talk about constitutions of the rule of law. ifh a particular focus on you have a rule of law, how do you keep it? nurture it? make it stick?
we have three extraordinary distinguished panelists to lead this conversation. each of them is directly involved with the workings of constitutional democracy. studying it, thinking about it, writing about it, teaching about it. and actually directly involved in its workings. thise introduce triumvirate. roger gregory is the chief judge thehe court of appeals for fourth circuit. he has served on that court for almost 20 years. --has the distinguished distinction of having been nominated for the court by both president clinton and president george w. bush.
he was confirmed by the senate 93-1/ judge gregory is the first african-american to serve on the fourth circuit. he founded a law firm with the first african american lawyer of virginia. also have a chair of the professor of law at the university of virginia. he has served on the faculty any -- longer than any other. he is still going strong 55 years into the mission. he has devoted his professional life to combing the mysteries of the u.s. supreme court and
understanding constitutions. he was the principal trestman of the last revision of virginia's constitution. he has helped write constitutions in many other countries. he has been acclaimed of one of the great virginians of the 20th century. on my left is the president and ceo of the national constitution center. he is also a professor at george washington university law school and a contributing editor of atlantic magazine. he is a prolific scholar and writer. i think it is fair to say he is one of our country's most compelling analysts and
commentators on legal matters, if not the most. read theave probably description of this panel in the program for today. rule of man or rule of law? society without checks and balances. what is the role of constitutions in making the rule of law take hold in emerging representative systems? what makes the constitution last? you cannot build a free society without the rule of law being tantamount. the question is how to make the rule of law stick. law it comes to the rule of , it seems to me that past
experience makes pretty clear that it is often easier for a country to talk the talk then to walk the walk. constitutions are written and adopted around the globe with provisions for the protections of civil rights, independent judiciary, checks and balances, much more. but when it comes to implementing these constitutional provisions, the rule of the often cannot compete with the rule of power, privilege, greed. what factors relate to account for the success of the rule of law in some countries but not others? the rule of law takes hold, how can it be nourished over time? how can it be made to stick? are there reasons for us to
believe that the rule of law will hold increasingly in the centuries to come? or has the rule of law had its brief moment in the sun and now constitutional democracies are an endangered species sinking in a sea of enormous technological change and societal alienation? i will bracestions are auguste panel with at the end of their presentations assuming they leave enough time. the real battle for this panel 10uld be each panelist gets 8- minutes uninterrupted to give his perspective on constitutions and the rule of law. then we will have a conversation together along the lines that i
just sketched. let's begin with judge gregory in the middle. inis actively involved making constitutional democracy work as a judge. thoughts abouts the role of an independent judiciary and a functioning rule of law. judge gregory, you are unleashed. gregory: as in a good trial lawyer would know, when you have great experts, you just get out of the way and make them when the case for you. my job is easy. the role of a judiciary is absolutely essential. that is my answer.
it is true. in september 1787, when our framers came out of that musty , someonehiladelphia asked ben franklin, what have you wrought? and he said, a republic, if you can keep it. it was important because he said if you can keep it. he was not speaking to the people who adjusts forms this document to bring forth a new nation. he said this republic will be here if you keep it. i think the constitution has stick ashink it will long as we the people understand
it belongs to us. the idea that the people seated this power to a government for thaturpose, it amazes me most men do not cite the preamble when they come before our court. there are very pressing constitutional issues. our framers spoke in broad language and broad principles. the preamble said to establish a .ore perfect union and to establish justice. i believe the preamble should be cited because whatever we do with interpretation, the end mission is always justice.
argue, if there , it must be toward justice. oral arc ofd the the universe is long that it always bends toward justice. that is probably the most enduring thing the framers gave me in the preamble. the biggest tool we have as the judiciary as we are independent. federalist paper 78 says that the constitution is the fundamental law and judges shall regard it as such. but it also says in terms of judicial review that establishes the rule of law. it becomes the primary law.
federalist paper 78 said that it is the peculiar province of the courts to interpret the law. proper, peculiar province of the courts. that is a heavy assignment to interpret the law under judicial review. that power is entrusted to us by the people. anvil.ike an if it's the anvil upon which the constitution has worked. it has to be worked. not with a hammer beating people down. but to make it a tool that becomes the utility for government. there was so much the framers left open.
most people who watch police shows know about miranda rights. but that is not in the constitution. but it is in the constitution that you should not be made to give testimony against yourself. that is a judicial creation. that is what we are always trying to do. you cannot work it just by reading. there has to be context. that is what they gave us.
a republic. as a judge, i have had some incredible cases since i have been on the fourth circuit. they are always difficult. that is what the whole challenge is. to make sure that self-governance is preserved. and rights are protected. it is the people who gave it. federalist paper 78 talks about judicial review. it says that when you get to ascertaining what the constitution is, this is what keeps me in check. the people gave me this power.
a very sacred one. first ascertain what the constitution says and understand it. then ascertain what the statute of the active. then determine whether or not there is an your considerable difference. so, you always prefer the constitution over the statute. not because you want to do it but because the intention of the people is expressed in the constitution and should always prevail over the intention of its agents. you own it. you gave it to me with the sacred trust that i will do so without fear. make it a living document. make it a tool.
i was on a big case and i was about to come on for oral arguments. i could hear crowds of people outside circulating the court. they had placards. i thought how wonderful this country is. that people are free to assemble and express their views. i can't look out there and try to count noses. like justice, i am blind to that. but the people sacred trust must be kept in the confines of understanding that constitution. one of the greatest compliments i had since i have been chief. an african-american man said to me, the fourth circuit is a just circuit.
it turns out that he had a habeas case. he said he went from an incarcerated person and 80 months later he owned a home. he said this is a symbol i use. i go back to the prison and tell other people how they can do something to change their lives. that is what to me makes the judiciary important. it gives a chance for all of us to understand self-governance and being who you can be. we talked about the glaring things left out of the constitution. the right to vote and citizenship are not defined.
yes, we have a republic. the question is we must keep people engaged. i'm happy that the judicial has a role in that. a friend of mine said democracies die behind closed doors. we must be transparent. that is why we have opinions. read them, understand them, this group them, but know that they to bene so faithfully faithful to the rule of law and self-governance will always prevail. thank you. [applause] >> we are glad you are on the fourth circuit.
we have heard about the role of it independent judiciary in the rule of law. structural checks and balances. they lead to compromise among the policymaking branches of government. >> thank you for that question. thank you for including me in this significant anniversary. it is a great honor to be here among three great virginians. i was born in new york. i now work in philadelphia. right across from independence hall where jefferson wrote the declaration and medicine and those other great framers wrote the constitution. what was medicine thinking when
he created the greatest human document of freedom? what was the centrality of the structural guarantee for the preservation of the rule of law? to summer before he came philadelphia, madison had a reading projects that have been sent to him by jefferson. jefferson sent to trunk full's of books from paris about the failures of ancients democracies, in particular greece and rome. thaton was concerned america might go the way of greece. thatderalist 55 he wrote in all large assemblies, passion never fails to rest the scepter of reason. if every athenian has been socrates, athens still would have been a mob. madison deduced from his reading that unchecked mobs deliberating face-to-face nbc spy passion and
lead to factions, which he defined as groups animated by passion rather than reason. by self-interest rather than the public good. which judge gregory so member libby defined. framersand the other set out to design a system where people would be ruled by reason instead of passion. structural protections were at the core of that project. madison was concerned about mobs like shays rebellion in massachusetts. he wanted to design a system that slowed down the liberation.
he is particularly encouraged by the large size of the american republic. that is why representation is the core of a representative republic. unlike athens, the framers did not want to make -- direct democracy. they didn't want referenda or brexit or twitter. they wanted to liberation and compromise. significantit is so we are here on the four 50th anniversary of representation. how did they expressed these guarantees and the constitution itself? at the national constitution center, which i want you to visit if you have not yet. we have the five earliest straps of the constitution ever written.
including the very first raft written by that forgotten but her roark framer james wilson. he wrote the first words ever written about the constitution. it says in the preamble that the government of the united states of the executive, legislative, and judicial branch. separation of powers. the idea of we the people came later. it was only the third draft that said we the people of the united states. separation of powers was the crucial, central innovation. where did he get the notion?
from the revolutionary era state constitutions. and in particular from the virginia declaration of rights. not only is virginia responsible for the 400th anniversary of the rule of law, it is responsible for the rights. we also have at our center one of the 12 original copies of the bill of rights. drafts ofu can find the amendment that madison proposed but were not ultimately .dopted i want you to download our app. not now, because i'm talking. but after the panel.
the first channeled and reproduced what jefferson put in the second sentence of the declaration of independence. all men are created equal and natural rights from god or governments that government has to secure these rights. oft is the lock-in statement natural rights. people have the right and duty to change them. the second amendment that madison proposed them was not adopted also came from the virginia declaration. it said the legislative branch .annot exercise judicial power it was the separation of powers amendment. reiterated what the virginia declaration had emphasized.
it was crucially important for each france to stay within its own lane to preserve the sovereignty of people. whenever there is a conflict between the wills of people and ,hey will of representatives you prefer the principle to the agent. that is based on the idea that the three branches do not speak for the people. only we the people speak for ourselves. each branch they see its own lane. that is why madison thought that a bill of rights was unnecessary or dangerous. because the constitution itself was a bill of rights. onlymiting power and specifying enumerated powers to the congress and judicial branch.
he thought it was dangerous because if you write down mightn rights, people wrongly assume that if a right is not written down, it is not protected. he changed his mind for prudential reasons. and we have the bill of rights taken largely from the virginia declaration. madison and the other framers thought those rights would be thehment and less structural guarantees of the constitution would be preserved. asking, wasy that theoo optimistic separation of powers would ensure?
the idea is that when passionate monster to mobilize, they will not be able to discover each other. and that topple representatives andhe people will set aside deliberate in the public good. world ofving in a twitter and facebook, where mobs can mobilize immediately. where false news travels faster than really is. it is more appealing to the passions. we are living in filter bubbles and echo chambers. the people themselves are increasingly unwilling to listen to thoughtful arguments on the other side. is there enough time?
madison thought we should slow down the liberation. at a time when the speed of the liberation is undermining the speed bumps and cooling mechanisms, we need to talk seriously about whether they and reason can be adequately concerned by these mechanisms. contrast are complicated, checked, multifaceted system with the other cradle of western democracy, britain, which gave rise to the magna carta and the virginia declaration and are due process clause, you see how a constitutional system can be misjudgment that
fundamental decisions can be made on boats. the framers had a deep conviction that in order to present the will of the people, we would never allow the people themselves to make a quick decision. we would insist that each of the three branches can never be present to speak in our name. loss can only go into affect if they are consistent with the constitution that has been ratified. that is the basis for my optimism and why i'm so glad to be part of this discussion. [applause] >> thank you. that was powerful. we will faithfully visit the national constitution center either in the flesh or on the internet or both. we are glad you are there and
leaving it. now we come to the vital matter howonstitution writing and a nation's constitutional , once it makes its constitution, puts it on paper, ratifies it, can nurture the rule of law and make it stick. or not. you are the world's leading expert on the subject. >> thank you. in berlin wall came down 1989. i'm sure many of you will remember the remarkable sequence of events. one communist government after another tumbled. in poland, czechoslovakia, hungary.
communism seem to have imploded in the region. privilege of teaching constitutional law. what a imagine remarkable opportunity it was to sitting around people making constitutions for the nations. these were very good lawyers and judges. experts in their fields. the constitution was the epitome for the symbol of the cold war. during this. in the 1990's, i was at a meeting in st. petersburg. i was working with judges and lawyers. it was that brief moment when we thought russia would become something like a liberal democracy. seems like such a long time ago.
there was to remember a glimmer of hope. we were having serious discussions. they had very good people. i don't speak any russian. we were looking for a translator. i discovered that she was translating the phrase rule of law as socialist legality. that is not exactly what we meant. immersed in this enterprise. for a guy like me who loves but wasn't alive in 1787, no matter what my students think, to see constitutions coming into being, what a wonderful moment for me. what i realized was i was
watching some of our american give advice and say, you need a new constitution. i have one right here. we the people of fell in the blanks. it became a mechanical enterprise of some sort. it is a lot more difficult than that. i quickly came to realize that constitutions are contextual. arehe sense that they depending on history, custom, tradition, practice. someone once said that central europeans carry more history in their backpack. history preoccupies people in that region. i was at dinner one night in
budapest and we were talking about the revolutions of 1848, which is a big deal in european history. we don't study it so much in this country. where liberalse and reformers and young people would hang out, have a cup of coffee, talk about what they hoped life would be like if they could get the austrian empire out of their hair. cafe, maybe itis is not a cafe anymore. question, onehat said, women at the table i was hungary in. i don't have any hungarians blood. he said if you care that much about hungarian history, you
must be hungary and. on constitution making here in virginia ms. mitchell: i was born and raised here. i started teaching law at the university of virginia. soon after i was appointed, the governor appointed a constitutional revision. i was asked to be the executive director. i did not tell them i had not even read the old virginia constitution. the first thing i had to do was go read it. i was amazed when i found their. if you fought a duel in virginia, you lost your right to vote. then i was asked to work for the legislature. finally the governor asked me if i would chair the constitutional reform campaign.
in theble to be involved drafting, the legislation's adoption, the popular approval, the whole process. it was an amazing experience. that ready to go to places like prague and budapest and warsaw. when you have been beat up on by the the members of the virginia legislature, there is nothing else anybody can do. constitutions are not abstract documents. they reflect reality. they have a history of a people and their aspirations and their way of thinking. 1989, theion after constitutions that emerged were very western oriented. they adopted principles like rule of law, supremacy, checks and balances. they were very influenced by the german basic law and by western democracies.
there was an age of euphoria. that the worldre is changing. some of you may have read the book called the end of history. it predicted that the wave of the future was liberal constitutions and democracies. it might take longer in some places that that is where the world was headed. people don't talk that way anymore. we have now recognize that that euphoria has vanished. more time inbly budapest and other capitals. student namedte orbanz.r bonds --
he was largely unknown. he is today the prime minister of hungry. he is rejecting the madisonian assumptions that we hoped would spread. when you talk about a liberal democracies, not just hungary, poland has moved in that direction. it has become a theme in many parts of the world. places that are authoritarian like china and russia but countries that have
entered into the democratic world. i keep thinking of central and eastern europe. today, what do we find? the power of people's affinity for their own sword, the sense that the rest of the world has to respect to, you will restore a golden age. , populism. runninge of people things to just and i get it and understand the ordinary people. authoritarianism worries me the most.
those of the countries where the good judges are being kicked out. they are bringing in friends of the party who will cozy up to the autocrat who is in power. it is not a pretty picture. it rejects the assumptions that we make about the structure that limits of authority. i think it does not have to end badly. i think it poses an extraordinary challenge. what should americans do about it? we might talk about that in a moment. we can't tell them what to do. they have to be in charge of their own destination. but i do think americans can set by example in our own system.
and by way of foreign relations. those are my opening assessments. [applause] it seems pretty clear that simply writing and adopting a that provides for an independent judiciary and has checks and balances protect human rights. and so on and so forth. it may be necessary to the rule of law but it is not sufficient. , what to ask each of you do you think the one or two or at most three most important factors are in determining
whether a rule of law in a country that does have a well written constitution actually takes hold and endures? and thrives what are the couple of factors that really seem to be the most important? >> i have told to the story of problems in countries where i have worked. that you do have to write a good constitution. i don't think we should discount the importance of having a fundamental law that sets out clear guidelines that empowers government but limits government of the same time. i think that is important. beyond that, a few things that occur to me. you have to have free and fair
elections. when i think about problems in places like budapest, i think about problems in virginia and america. gerrymandering has already been mentioned. it seems like the supreme court has said there is no judicial remedy. toss that problem back to the states. virginia has an amendment pending to the state constitution which would create a commission of legislators and citizens to actually draw district lines. i would say free and fair elections. even that is that going to do it. independent judges who will .tand up to the pressures i think of the district judges back in the 50's and 60's after brown the board.
brown v. board. they had to stand up to their own communities to enforce the constitution. nurturing a constitutional .ulture ultimately, write a good constitution, you can have good judges, you cannot fair elections, but the people themselves have not internalized the practices of constitutional democracy. it can be very difficult to imagine it will work. -- one reason i'm glad to be here as part of this event toay is that in looking back 1619, one realizes all of those generations of people and making mistakes along the way but by the time we went to the stage of writing state and federal constitutions.
we had in many ways practiced the art of self-government. we entered this stage of the american republic having already some of the sense of what it takes to make a government work. what kind of respect he should have for other people and their views. i'm not sure there's much left to say. [laughter] roger, what do you think? >> i think they can was very conference of. inclusion and axis to the ballot and free access and open is very important in our culture.
we talked about the logic of the quality. in the golden age, women were not included, slaves, foreigners. but the men who were included started with the deal that there was the logic of the quality. they felt each other capable of government. worthy of government. and they showed they were educated and prepared. everybody and their lifetime had a chance to be in that circle. when sally gets her turn, i want to make sure she is prepared. isn't that awesome? they will have their turn to govern.
isn't that a wonderful idea of culture? that our democracy is so important that we want everyone to be prepared. good education, good health, good perspective on who they are and who they can be. to ais the foundation constitution that sticks. we are equal in worthiness to be embraced by this idea of constitutional government. that is so much part of the alchemy that goes into it. they have identified at least for crucial factors for the rule of law. an independent judiciary, free speech, checks and balances, and this crucial question of civic education. i will echo that an illustrated
with an idea that picks up on the idea about turkey. this is the time when facebook and google have more power about who can be heard. ago, google was asked to adjudicate that very business of insults to turkey. postedeek football fans videos on youtube saying that the founder of modern turkey was gay. that is a crime in turkey. turkey demanded that google shut down you to an turkey because of this offense. google initially refused because it is not illegal under google's terms of service to insult foreign leaders. turkey shutdown google and blocked it and demanded that
google block youtube everywhere in the world. foreignws the pressure governments will influence and the unbelievable power of these platforms. this story has a follow-up. , the google took it stand european union's past a new right called the right to be forgotten on the internet. anyone who gets insulted on the internet has the right to demand that the console comes down. they are liable up to 2% of their annual income. google has removed 43% of its statement requests.
the point of this story is in the face of this new regulation, google no longer has the ability to enforce the version of the american first amendment, each is embraced by almost no other country in the world. it says speech can only be banned if if it is likely to cause imminent violence. it was embraced by the u.s. supreme court but not by any other country in the world. that suggests a crucial need for a first amendment with teeth. the ability of independent judges to enforce it. decision makers are accountable to those judges and not just lawyers and private companies who have the ability to make decisions unchecked of separate powers and the rule of law. law. very much echoing judge gregory and professor howard's emphasis on the importance of education.
george washington said education washe science of government crucial because unless citizens knew their liberties and had the self-discipline and self-restraint to master their passions and develop themselves in the public's interest, and aristotle insisted in the conception of happiness, unless all of us exercise but self-restraint, than the republic would collapse. that is what the national constitution center was founded by congress to inspire citizens of all perspectives, to educate themselves about this beautiful freedom, anduman that is why i am so privileged to be part of it, and that is what all of us together must learningourselves to about the constitution ourselves and inspiring our children at the next generation to run about it as well. [applause] >> yes. yes.
question. last the wonderful panel that --ceded us, the frisky panel [laughter] optimism. this optimism about the rule of law, has it basically had its , and relegatedun constitutional democracies like the united states and britain, not at random, can it withstand social alienation, economic social-media?he you how optimistic are
about the rule of law going forward? when you have the chinese empire rising again, the russian bear still out there growling, is the , has it basically had its moment? gregory: i am on the ondamentally -- i will end the fundamentally optimistic note. america used to be called the city on the hill, the shining example, and all about. the declaration of independence, jefferson's declaration, begins on addressing a rod audience. thexpects holding out
american example for other people to emulate or not accept or reject. i think we have had a wonderful history in the last two and a half centuries. other places don't imitate to the american example and yet they can't do that, they are not american. but there are. a remarkable number of countries -- think how many few democracies there were before 1945. stress.der we talk about the russian bear and the chinese example, unfortunately, so many people now look at china for example, having created a middle-class that did not exist 30 years ago, and they look at that system is being unattractive one for them -- being attractive one for theman. so we have to take a hard look at the problems here at home, problems of gerrymandering, the
right to vote, cleanup our act and make us the kind of example we would like to be, then remember the place we ought to have in the affairs of the world not to retreat for the world that be part of the international sea and influence the vestry can. i think that will push us in the direction of an optimistic conclusion. >> i would just say, yes, i am very optimistic about the generations later will be able to have an sick, mr. franklin, yes, we kee did keep it. in the same room that i addressed the 2019 law class of women marry i remember looking bass faces, andu talking about the whole idea that the law is more than just
-- and justice was something worthy to first to come and to pursue truth even at the risk of failure. i believe a television like that will come and they will know a wonderful form of government, but we have to work ourselves to fulfill that and make it a reality. and i believe we can and will. >> i am optimistic. at the and of the convention, frankly looks at washington's chair. sun on it, i think it was a rising sun. you can't have the debates i have seen among citizens without being optimistic. i host a weekly podcast, where i summon the leading liberal and conservative scholars around the country to debate an issue of the week. last week a young couple over to me and said, we just got married
we met over the podcast,. we debated constitutional issues, initially disagreed, but we loved learning about the government, the commerce clause and we are so moved that the podcast got us together, that we are spending our honeymoon and we want to come to the national constitution center. [laughter] that is what i am optimistic! host: all right. thank you all. [applause] ♪ thank you all. ♪ x >> tonight, on q&a, a staff photographer talks about photos covering president trump. >> he enjoys having us around. despite his constant comment about fake news in the media, i feel he enjoys having us around. it helps drive his message in the news of the day which he can
do every day. he is constantly driving the message. therefore, having us around allows him to do that. eastern, onrt 8:00 c-span's q and a. >> 50 years ago this weekend. an iconic weekend known as woodstock. it took place in bethel, new york. for the next hour on washington journal and live on c-span3, we will look back and exactly what happened and why in the legacy of woodstock 50 years later. joining us is david farber. here his that he is a historian joining us from the university of kansas. first, here is how abc news covered the massive crowd that shutdown a town not far from new york city.